Terms and Conditions of Trade
Definition/Interpretation
1.1 “CoolDrive” means “Automotive Imports Pty Ltd”, ACN 005 378 727, ABN 29 005 378 727, and its subsidiaries, successors, assigns and associated
companies and their servants and/or agents.
1.2 “Conditions” means these Terms and Conditions of Trade.
1.3 “Contract” means the Conditions, the Application for Credit and any Schedule to the Contract.
1.4 “Customer” means the entity that has contracted with CoolDrive to buy Goods.
1.5 “Goods” means all goods, including without limitation, accessories, materials, services and equipment supplied or to be supplied by CoolDrive to the
Customer at the Customer’s request.
1.6 “Payment” means when CoolDrive receives cash or upon clearance of a cheque tendered for such payment, unless otherwise specified in an invoice.
1.7 “Payment Date” means the date specified for payment on each invoice.
1.8 “Services” means any services supplied by CoolDrive to the Customer at the request of the Customer.
1.9 “Schedule” means any orders, order forms, invoices, guarantees or other documents which form or describe the subject matter of the Contract,
but does not include any descriptions, illustrations and performances contained in catalogues, price lists and advertising material.
Orders and Acceptance
2.1 These Conditions will apply to all quotations, orders and offers in relation to the Goods and Services, and the sale, supply, service and replacement
of all goods, and will take precedence over any inconsistent provisions in any Customer order.
2.2 Each order by the Customer is subject to acceptance or rejection by CoolDrive and is not binding on CoolDrive prior to CoolDrive's acceptance of it.
The Contract constitutes the entire agreement of the parties in relation to the subject of that order and may only be varied in writing, signed by
the parties.
2.3 The Customer shall not be entitled to cancel any order either written or verbal except with the written consent of CoolDrive. In the event that
CoolDrive accepts the cancellation of any order placed, it shall be entitled to charge a reasonable fee for any work done to the date of the cancellation
including a fee for the processing and acceptance of the Customer’s order and request for cancellation.
2.4 CoolDrive shall not be liable for any failure to observe, or breach of any of the Conditions by reason of Acts of God, war, riots, civil commotions,
strikes, lockouts, trade disputes, fires, breakdown, interruptions of transport, Government action, prohibition, or import or export delay, delay in
delivery by CoolDrive’s suppliers or any other cause whatsoever beyond its control impeding or interfering with the manufacture, use, delivery or
carriage of the Goods or any Services to be supplied.
2.5 Where the customer places an order in writing with CoolDrive for non-stock items, CoolDrive will not accept return of non-stock items unless the
manufacturer agrees to accept return from CoolDrive. CoolDrive may deduct transport, insurance handling and restocking charges from the credit
due to the customer.
Quotes and Prices
3.1 All prices shall be “ex-warehouse” and shall not include insurance or delivery charges. CoolDrive may invoice the Goods sold at the prices relevant to
the Goods ordered at the date or delivery of each order.
3.2 Where a quotation is given by CoolDrive for Goods:
3.2.1 unless otherwise agreed, is not an offer to sell or provide Goods;
3.2.2 unless otherwise agreed the quotation shall be valid for 14 days from date of issue;
3.2.3 CoolDrive will not be bound by any order given until accepted in writing;
3.2.4 CoolDrive reserves the right to alter the quotation because of circumstances beyond its control including, and in no way limited to, increases
in the cost of labour, materials, freight, foreign exchange rates, taxes, duty or other levies taking effect prior to the date of delivery;
3.3 Where Goods are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods.
Risk to Goods and Delivery
4.1 Notwithstanding any arrangements made for the transportation of the Goods to the Customer’s nominated destination, risk in the Goods passes to the
Customer on delivery.
4.2 Delivery is taken to be when the Goods leave CoolDrive’s premises.
4.3 The Customer must pay any delivery charges incurred at cost plus GST and other relevant charges prevailing at that time.
4.4 The Goods and Services will be delivered within the normal hours of a business day to the address specified by the Customer to CoolDrive.
4.5 CoolDrive is not liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery.
4.6 CoolDrive may at its option deliver the Goods and Services to the Customer in any number of instalments.
4.7 Within 24 hours of receipt by the Customer of the Goods and Services, the Customer shall notify CoolDrive of any shortage.
4.8 Within 14 days of receipt by the Customer of the Goods, the Customer shall provide notice in writing to CoolDrive of any defects. If CoolDrive is
satisfied that the alleged defects have arisen solely from faulty materials or workmanship on the part of CoolDrive and the Goods have not received
maltreatment, inattention or interference by the Customer, CoolDrive will replace the Goods with equivalent Goods.
4.9 CoolDrive will not accept the return of any Goods unless such return is consented to in writing by CoolDrive. If CoolDrive consents to the return, the
Customer, at the Customer’s cost, shall return the Goods to CoolDrive at the address from where the Goods were dispatched.
4.10 The Customer agrees that neither it nor its employees or agents will replicate or attempt to replicate the Goods in any manner whatsoever.
Title and Personal Property Securities Act 2009 (PPSA)
Goods
5.1 Notwithstanding delivery and passing of risk, legal and beneficial title in the Goods shall remain with CoolDrive until it has received payment in full for
all monies owed by the Customer.
5.2 Until CoolDrive has received payment in full for all monies owed by the Customer, CoolDrive reserves the following rights:
5.2.1 legal and beneficial ownership of the Goods;
5.2.2 the right to enter the Customer’s premises and retake possession of the Goods;
5.2.3 the right to keep or resell any Goods repossessed under sub-clause 5.2.2; and
5.2.4 any other rights it may have at law or under the PPSA.
5.3 Where, pursuant to sub-clause 5.2.3:
5.3.1 CoolDrive resells the Goods repossessed, it is agreed that CoolDrive may credit the Customer’s account with the net proceeds of sale (after
deduction of all repossession, storage, selling and other costs); or
5.3.2 CoolDrive retains possession of the repossessed Goods, it is agreed that CoolDrive may credit the Customer’s account with the invoice value less
such sum as CoolDrive reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
5.4 CoolDrive shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken to
repossess the Goods.
5.5 If the Goods are attached, fixed, or incorporated into any property of the Customer, title in the Goods shall remain with CoolDrive until the Customer
has made payment for all monies owed to CoolDrive and where those Goods are mixed with other property so as to be part of or a constituent of any
new product, title to these products shall be deemed to be assigned to CoolDrive as security for the full satisfaction by the Customer of the full
amount owing between CoolDrive and the Customer.
5.6 Until CoolDrive receives payment for Goods in full, the Customer acknowledges that CoolDrive has a Purchase Money Security Interest (“PMSI”)
which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to CoolDrive.
General
5.7 Upon assenting to these Terms and Conditions of Trade, the Customer acknowledges and agrees that these Terms and Conditions of Trade
constitute a Security Agreement for the purposes of the PPSA.
5.8 The Customer undertakes to do anything (such as obtaining consents, producing documents, producing receipts and getting documents completed
and signed) which CoolDrive asks and considers reasonably necessary for the purposes of:
5.8.1 ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective;
5.8.2 enabling CoolDrive to apply for any registration, or give any notification, in connection with the Security Interest created under this
Agreement so that the PMSI and/or Security Interest has the priority required by CoolDrive.
5.9 To the extent permitted by law, the Customer irrevocably waives its right to:
5.9.1 receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
5.9.2 redeem the Goods under section 142 of the PPSA;
5.9.3 reinstate the Agreement under section 143 of the PPSA;
5.9.4 receive a Verification Statement.
5.10 Nothing in clause 5 prevents CoolDrive from taking collection or legal action against the Customer to recover any monies owed from time to time.
Payment
6.1 Payment by the Customer for the Goods and Services shall become due and payable on the Payment Date.
6.2 Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:
6.2.1 there is non-payment of any sum by the Payment Date;
6.2.2 CoolDrive forms the view that the Customer will not pay any sum by the Payment Date;
6.2.3 the Customer is bankrupted or enters administration, liquidation or receivership;
6.2.4 a Court judgment is entered against the Customer and remains unsatisfied for seven (7) days;
6.2.5 any material adverse change in the financial position of the Customer.
6.3 Interest accrues on any amount owing after the Payment Date at the rate of 15% per annum, calculated daily from the first day overdue until payment.
6.4 All payments to be made by the Customer will be made without set-off (whether arising at law or in equity) or counterclaim (whether arising at law or
in equity) and free and clear of any withholding or deduction whatsoever, unless prohibited by law.
6.5 The Customer shall pay (on a full indemnity basis) any and all losses, expenses, damages, disbursements, collection costs and legal costs which
CoolDrive has incurred or is liable to pay, in connection with the enforcement of any rights and/or preservation of any rights contained in this contract.
6.6 For the purposes of clause 6.5, the Customer acknowledges that collection costs may be calculated on a commission basis at a percentage rate of up
to 20% of the amount due and expressly agrees to pay for those expenses as liquidated damages on demand, irrespective of whether (a) CoolDrive
is not liable to pay the collection agent the commission, until the Customer has made payment of the Customer’s overdue debt (or any portion
thereof) and/or (b) the amount of work actually performed by the collection agent before the Customer makes a payment for an overdue debt.
6.7 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in CoolDrive receiving cleared funds
for the entire amount of the negotiable instrument.
Credit
7.1 CoolDrive, in its absolute discretion, may refuse to proceed with the Contract at any time, or refuse to extend credit, if the Customer’s credit is or
becomes unsatisfactory to CoolDrive.
Claims and Returns
8.1 Acceptance of the goods delivered shall be deemed for all purpose to have taken place at the expiration of 14 days from the date of each delivery.
No goods will be accepted for return unless agreed in writing by CoolDrive prior to such return and then only upon conditions acceptable to CoolDrive
and at the customer’s entire risk as to loss or damage and provided the goods are in the condition in which they were delivered. Where CoolDrive
agrees to accept goods for return, a service fee of $25.00 and/or a restocking charge of 15% of the price of goods shall be paid by the customer.
Liability
9.1 All implied conditions, warranties and undertakings other than the warranties set out in CoolDrive’s Product Warranty Information Leaflet are
expressly excluded to the extent permitted by law.
9.2 Where the Goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then CoolDrive’s liability is limited, at its
option, to any one or more of the following:
9.2.1 the replacement or supply of the equivalent of the Goods;
9.2.2 the repair of the Goods;
9.2.3 the payment of the costs of replacing the Goods or acquiring their equivalent; or
9.2.4 the payment of the costs of having the Goods repaired.
9.3 Subject to the Customer’s rights under Schedule 2 of the Competition and Consumer Act 2010 (“CCA”), CoolDrive shall not be liable for:
9.3.1 any loss or damage of any kind whatsoever, arising from the Goods, including consequential loss whether suffered or incurred by the
Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or
damage arises directly or indirectly from the Goods; and
9.3.2 the Customer shall indemnify CoolDrive against all claims and loss of any kind whatsoever however caused or arising and without limiting
the generality of the foregoing of this clause whether caused or arising as a result of the negligence of CoolDrive or otherwise, brought by
any person in connection with any matter, act, omission, or error by CoolDrive, its agents or employees in connection with the Goods.
Warranty
10.1 Goods sold shall have the benefit of any warranty given by the manufacturer and will only be considered if return of the goods or any part of them is in
accordance with the CoolDrive’s warranty policy but CoolDrive shall not be liable for any loss or damage either direct or consequently arising out of
any defects arising from the use of the goods.
Termination
11.1 If:
(a) the Customer breaches any provision of the Contract; or
(b) the Customer assigns any of its property for the benefit of creditors; or
(c) the Customer (who is not a natural person) becomes subject to any form of insolvency administration including, without limitation, the appointment
of a receiver, receiver and manager, liquidator, provisional liquidator or administrator; or
(d) the Customer (who is a natural person) commits an act of bankruptcy or has appointed to him or her a trustee in bankruptcy; or
(e) any step is taken by a mortgagee to exercise its right to take possession of the property of the Customer, CoolDrive may terminate or suspend
performance of the Contract or any other contract with the Customer or require payment of cash in advance of delivery and will be entitled to
payment for any Goods already delivered or work in progress or Services provided under the Contract at the rate specified in the Contract or,
if none is specified, at a reasonable rate.
11.2 This clause does not limit any other remedy that may be available to CoolDrive including compensation for any loss or damage suffered by it.
Property Rights
12.1 CoolDrive will retain all copyright and other proprietary rights in any CoolDrive confidential information and any CoolDrive material, including
documents, drawings, certifications and instructions provided to the Customer. The Customer must not use the CoolDrive information or
material or their contents for any purpose other than the purpose for which they were provided. The Customer must not disclose,
transfer, transmit or otherwise make available to any third party in any manner or form, any material or their contents or any
information relating to them or the Goods and Services without CoolDrive’s written consent.
Jurisdiction
13.1 These terms and conditions and all matters concerning the business relationship between CoolDrive and the Customer shall be governed by the
law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of Victoria for the conduct of any litigation.
13.2 Notwithstanding clause 13.1, at CoolDrive’s discretion, any dispute arising out of the Contract may be heard and determined within the jurisdiction
of that State, and in the event of default in any obligation under the Contract, CoolDrive shall be at liberty to commence proceedings before any
Court of competent jurisdiction in the capital city of that State or such other place as CoolDrive may so elect.
Privacy
14.1 CoolDrive collects personal information about the Customer (if a sole trader, individual trustee, or partnership of individuals) for the purposes set
out in its Privacy Policy. This policy may be located at http://ishop.cooldrive.com.au/ A hardcopy of this policy can also be provided
to the Customer free of charge, upon request.
14.1.1 The Privacy Policy sets out: the personal information CoolDrive collects; how CoolDrive collects and uses this information; how the
Customer may access or correct it; and how the Customer may make a complaint in respect of CoolDrive’s management of the
information;
14.2 By the Customer providing instructions to CoolDrive for the supply of Goods, the Customer is consenting to CoolDrive collecting, handling, using,
disclosing and otherwise dealing with the Customer’s personal information (including credit related personal information) in accordance with the
terms of CoolDrive ’s Privacy Policy, and in accordance with Australia’s privacy laws
Charge
15.1 The Customer hereby charges in favour of CoolDrive all of the Customer’s estate and interest in any land, freehold or leasehold, in which the
Customer now has or which it may later acquire any such interest in, with payment of all monies owing by the Customer to CoolDrive from time to
time and hereby consents to CoolDrive lodging a caveat or caveats which note CoolDrive’s interest.
Assignment
16.1 The Customer cannot assign these terms and conditions without the prior written consent of CoolDrive.
16.2 CoolDrive can assign these terms and conditions to a third party without the consent of the Customer.
Miscellaneous
17.1 If by reason of any fact, circumstance, matter or thing beyond the reasonable control of CoolDrive, CoolDrive is unable to perform in whole or in part
any obligation under these terms and conditions, including delay in installation, CoolDrive shall be relived of that obligation under these terms and
conditions to the extent and for that period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
17.2 Failure by CoolDrive to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or
obligations under this contract.
17.3 If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining
provisions shall not be affected.
17.4 The Customer will notify CoolDrive in writing of any change of ownership of the Customer or its business, or of directorships in the case of a
corporate Customer, or of any other change whatsoever affecting these terms and conditions within seven (7) days from the date of such a change.
17.5 The Customer indemnifies CoolDrive from and against any loss or damage incurred by it as a result of the Customer’s failure to notify CoolDrive of
any change in ownership.
17.6 Any variation of the terms and conditions contained in this contract must be agreed to in writing by CoolDrive for it to have any legal effect.
17.7 Clerical errors, typing or other errors in computations, catalogue, quotation, acceptance, offer, invoice, delivery docket, credit note or specification of
CoolDrive shall be subject to correction by CoolDrive.
17.8 The Customer acknowledges that these Conditions take precedence over any terms and conditions contained in any document provided by the
Customer.
17.9 CoolDrive may amend the Conditions at any time by giving 30 days notice, including without limitation, by posting revised terms on its website at
http://ishop.cooldrive.com.au/
Terms of Website Use
Users must not disclose their login details to third parties or in any other way allow third parties to access CoolDrive iShop 2.0 using their login. CoolDrive reserve the right to withdraw without notice access to iShop 2.0 from any user who in their opinion has breached these terms and conditions or in any other way uses the website for purposes for which is was not intended.
This catalogue/web site has been prepared specifically for customers of the publisher and as a general reference only.The information contained herein is subject to change without notice.This catalogue/web site does not imply that any such parts are available for supply.
Parts of this catalogue/web site have been prepared using information supplied by various trade organizations, publications and supplier catalogues. The publisher has taken care to ensure the accuracy of information in this catalogue/web site. Customers are advised to confirm details contained herein and the suitability of the items of their specific needs. No representation or warranty is made or given regarding the ability to substitute one part for another.
The publisher and any party associated with the production of this catalogue/web site do not accept any responsibility or liability whatsoever (to the extent permitted by law) for any inaccuracy, error, misinformation or misleading statements, whether negligently caused or otherwise, contained in this publication.
This publication is protected by copyright and may not be reproduced or copied (using any method of reproduction or copying), sold, transmitted, circulated or otherwise forwarded to third parties, in whole or part, without prior written consent of the author.
All trade marks, registered and product names appearing herein are the property of their respective owners.
